Vicarious liability

• Vicarious Liability is where...


  one person (usually an employer) is responsible for the tort of another (usually the employee).
• why might this be beneficial for a claimant?

  this allows the c to sue the employee and the employer and discover which is better placed to pay the compensation.
• this may be because one of the parties (usually the employer) is more likely to be in a...


  better financial position and/or insured.
• without vl, an injured c will be left without...


  compensation
• why might this kind of liability be considered unfair?

  because it holds the employer responsible for the action of another - often someone that they might not have any day to day dealings with e.g. big companies.
• how is the principle justified?


  usually justified because the employer employs, trains and supervises the employee, as well as benefiting their work.
• who are the parties to the action?

  the tortfeasor - the person who commits the tort and causes harm (this is the employee)

  
  

  the claimant - the victim who suffers the harm

  
  

  the defendant - the person liable for the tort (usually the employer).
• what are the requirements for vicarious liability?


  there are two routes the courts have established,

  
  

  both require the courts to establish that a relationship exists between the parties that makes it right for one to pay for the fault of the other and...
• there must be a...

  connection between that relationship and the tortfeasor's wrong doing
• what case established there must be a connection between the relationship and the tortfeasor's wrong doing?

  Barclays Bank v Vicarious Claimants
• what do the courts start to look at in both the traditional approach and contemporary approach for whether a tort has been committed?

  is the tortfeasor is an employee.
• traditional route:

  the person is an employee, has the tort been committed in the course of employment? yes = liable no = not liable.
• contemporary route (new approach):

  person isn't an employee, is there a relationship akin to employment? no = not liable yes = is there a close connection between the relationship and the tort? yes = liable no = not liable.
• (the traditional approach for vicarious lability establishes:)

  1. is the tortfeasor an employee?

  2. was the tort committed in the course of employment?
• why do we need to prove that the tortfeasor is an employee?


  employers will only be liable for the actions of their employees (contract of service), but not for independent contractors (those who are self employed and provide a contract for service).
• under the traditional approach how is it determined whether a tortfeasor is an employee?


  there are 3 tests
• what are the 3 tests the courts developed to determine whether a tortfeasor is an employee?

  the control tests, the integration or organisation test, the economic reality or multiple test.
• who developed the control test?

  Lord Thankerton, in Short v Henderson
• what are the key features to whether the employer has control over the employee in the control test?

  the power to select the employee

  the right to control the method of working

  the right to suspend and dismiss

  the payment of wages
• case for control test:


  what was held in Hawley v Luminar
• what was held in Mersey Docks v Coggins?


  the terms of any hire contract are not decisive, and the permanent employer is presumed liable, the original employer was therefore liable.
• what was held in Hawley v Luminar?


  the court decided that the club exercise so much control over him that they therefore employed him.
• case that established the integration or organisation test:

  Lord Denning in Stevenson v McDonald
• what are the tests established in Intergration or Organisation:

  a worker will be an employee if their work is fully intergrated into the business e.g. a teacher

  if a persons work is only an accessory to the business, that person is not an employee. e.g. catering
• what case established the economic/multiple test?


  Ready-Mixed Concrete v MPNI
• first condition of the multiple test?


  the employee agrees to provide work or skill in return for a wage
• second condition of the multiple test?


  the employee expressly or impliedly accepts the work will be subject to the control of the employer
• what is the last condition of the multiple test?


  all other considerations in the contract are consistent with there being an employment contract, rather than any other relationship.
• what is considered in the multiple test update for relationship?


  .the ownership of any tools, plant or equipment

  .the method of payment

  .tax

  .role desc
• also independence in doing the job - probably one of the most important tests of slef employment is the amount of _____________ and ______________ a person has, the more they have the more likely...


  flexibility and independence, they are self employed.
• all these factors are useful in identifying the status of the worker, but none is...


  an absolute test or definitive on it's own, and cases can still bring conflicting decisions.
• case example for identifying employer:

  carmichael v national
• Carmichael v National:

  tour guides employed on a casual basis were not employees as there was no formal contractual arrangement between the parties.
• another case example for identifying employer:

  ferguson v dawson
• Ferguson v Dawson:


  there was a contract which stated that a building labourer was self-employed, but the courts decided that he was employed and the employers were required to protect him under safety laws.
• last case example of identifying employer:

  viasystems v thermal transfer
• Viasystems v Thermal:


  coa decided that in some cases it was possible for two 'employers' to be dually (and equally) liable for an employee's negligent work.
• the cases for identifying employer are more eval rather than application--

  ye
• what is the traditional (salmond) test?


  an employer would be liable if the tort was committed 'in the course of employment
• in the course of employment, was said to mean that the employee's act was...

  'a wrongful and unauthorised mode of doing some act authorised by the master'.